FROM TIME to time, employers may face situations where their business is being significantly disrupted by employees who do not get along. Tackling this issue can be difficult.
It is often the case that the employee’s behaviour does not amount to misconduct or poor performance issues which can be addressed via a disciplinary or performance management process.
Where a personality conflict at work has become so disruptive that the employer is considering dismissing one or more employees, how can they do so fairly?
Under the Employment Rights Act 1996, there are five potentially fair reasons for dismissal:
- Some other substantial reason (SOSR) which justifies dismissal of the employee from th eposition they hold.
Personality conflicts may amount to a SOSR in circumstances where the conflict is having a significant impact upon the business and the breakdown in relationships between employees is found to be irretrievable.
One example of this is the case of Perkins v St George’s Healthcare Trust in which the Court of Appeal found that a senior employee was dismissed for SOSR in circumstances where he could not work harmoniously with his colleagues and this had resulted in a breakdown of mutual trust and confidence.
However, employers should exercise caution before commencing a formal dismissal process with a difficult individual.
Where personality conflicts are concerned, an employment tribunal will expect an employer to consider every step short of dismissal prior to making the decision to dismiss. This may include:
- Investigating whether there are any reasons for an employee’s inability to get along with one or more of their colleagues including stress or ill health.
If there are health issues, the employer may need to consider whether it is more appropriate to deal with matters by way of an ill health capability procedure. Where stress is a concern, employers may need to take steps to address the causes of the employee’s stress and any assistance that can be provided.
- Consideration of whether the issue can be addressed via a performance management or disciplinary process: for example, if management style is a concern, can this be addressed with training or mentoring?
It may be that if the employee has been recruited as a senior manager they should not have to be trained for a management position they applied for, such application being usually implicitly made on the basis that the employee would already have the necessary skills for the job.
- Whether workplace mediation may enable the relevant employees to find a constructive way forward.
This is something that ought to be considered in all cases of this type but mediation is only likely to be appropriate where the conflict is confined to a specific group.
It may not work as well where there are a large number of individuals involved or where some of the issues relate to other individuals who are not employees of the business.
However, the employer should be able to demonstrate that they have considered mediation even if they decide not to go ahead with such a process.
- Can the employee be redeployed to another area of the business? This matter should be approached carefully to avoid an employee resigning as a result of the change in role and bringing a claim for constructive unfair dismissal.
In the case of Turner v Vestric, the dismissal of a secretary who did not get along with the branch manager for whom she worked was found to be unfair as no consideration had been given as to whether the employees could resolve their differences.
Employers should also be alert to potential discrimination claims in cases where conflicting views, for example, about religion are the source of the conflict.
Where steps short of dismissal have been tried and failed or are not appropriate, the employer should follow a fair dismissal procedure which includes a proper investigation, allowing the employee to answer the case against them at a hearing and the right of appeal.
Employees should also be permitted to bring an appropriate companion to any relevant meetings, namely, a trade union representative or a work place colleague.
Although a dismissal for SOSR is not a conduct or performance matter, employers would be well advised to follow a similar process given recent case law that the ACAS Code on Discipline and Grievances applies to SOSR dismissals.
Taylor Walton are running a series of free workshops in October which will focus on dealing with personality conflicts in the workplace.
Taylor Walton’s Employment Law team regularly runs free workshops on various employment law topics and issues.
Visit www.taylorwalton.co.uk/events for more details.